Rogers v. Bass & Harbour Co.
| Decision Date | 09 October 1917 |
| Docket Number | 6502. |
| Citation | 168 P. 212,64 Okla. 321,1917 OK 482 |
| Parties | ROGERS, County Treasurer, v. BASS & HARBOUR CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 20, art. 10, Williams' Annotated Constitution, providing that "the Legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may, by general laws confer on the proper authorities thereof, respectively, the power to assess and collect such taxes," does not constitute a limitation upon the powers of the Legislature to impose taxes in which the state has a sovereign interest, although of a municipal character, such as taxation for police protection, for streets, highways, and bridges, for the purpose of establishing and maintaining a public school system," etc.
The members of the excise board are officials of the county chosen by the electors thereof, and taxes levied by them for county purposes are levied in theory and in fact by the proper officials of said county.
The provisions of the charter of the city of Muskogee in so far as they regulate the method of levying and collecting taxes for purely municipal purposes prevail over the general laws of the state in reference thereto in so far as said general laws are in conflict therewith.
Section 7380, Rev. Laws 1910, which requires the excise board to keep a record of its proceedings, is directory, and when a tax is in fact levied as required by law, the failure to keep a record thereof will not invalidate such tax, and the fact that a levy was made may be shown by other evidence.
Chapter 184, Session Laws 1913, p. 413, legalizes and makes valid all levies and assessments of taxes for the various counties cities, townships, towns, and villages of the state for the fiscal year ending June 30, 1913, as if all acts required by the statutes of the state in relation to the levy and assessment thereof had been fully and completely complied with.
Section 7, art. 1, c. 240, Session Laws 1913, requiring the payment of taxes claimed to be illegal by reason of some action from which no appeal is provided, and requiring notice to the collecting officer, showing the grounds of complaint, and authorizing the taxpayer to bring suit within 30 days for the recovery thereof, does not apply to an action commenced before its passage and approval.
In all matters pertaining to taxation a party who seeks equitable relief against an assessment of which he complains must himself offer to do equity. He must offer to pay the amount of taxes which the facts show would be properly chargeable against him under a proper assessment.
Error from Superior Court, Muskogee County; Charles A. Cook, Judge.
Suit for injunction by the Bass & Harbour Company against Connell Rogers, County Treasurer of Muskogee County, Okl. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Fred P Branson, Co. Atty., and W. E. Disney, both of Muskogee, and Blakeney & Maxey, of Tulsa, for plaintiff in error.
Guy F Nelson, of Oklahoma City, and Noffsinger & Broome, and B. Broaddus, all of Muskogee, for defendant in error.
Defendant in error, plaintiff below, brought suit against plaintiff in error, defendant below, to restrain him, as county treasurer of Muskogee county, from collecting certain taxes levied upon plaintiff's property for the year 1913. The motion to dismiss this proceeding has already been determined and a written opinion filed, and we will not now reconsider the question then disposed of. Rogers v. Bass & Harbour Co., 47 Okl. 786, 150 P. 706. Demurrer to plaintiff's petition was overruled, and trial had, which resulted in a judgment, perpetually enjoining the defendant from collecting the taxes involved.
It is urged that the taxes complained of are void because levied by the excise board and not by the proper officials of the various municipalities, and it is claimed that the legislation under which these various acts of the taxing officials were performed, in so far as municipal taxes are concerned, is in violation of section 20, art. 10, Williams' Ann. Const., which declares:
The principle announced in Thurston v. Caldwell was adhered to in Thurston v. Frank et al., 40 Okl. 463, 139 P. 124, and in Thurston v. Hine, 40 Okl. 465, 139 P. 125, and this rule appears to have been generally followed since that date. In St. L. & S. F. R. R. Co. v. Amend, 44 Okl. 602, 145 P. 1117, and in St. L. & S. F. R. R. Co. v. Haworth, 149 P. 1086, certain taxes in excess of the estimates submitted to the excise board were enjoined.
The members of the excise board are officials of the county, chosen by the electors thereof at the regular election, upon whom are imposed the duties performed by such board, and the taxes levied by them for county purposes are, in theory and in fact, levied by the proper officials of the county. As to the school district taxes and taxes in the city of Muskogee in which the state has a sovereign interest, the authority of the excise board to act in reference thereto is settled by the decisions just cited.
Section 91 of the charter of the city of Muskogee provides that the commissioners of the city shall furnish to the mayor estimates in writing of the probable expenses to be incurred in their several departments for the ensuing year, duplicates of which shall be sent to the commissioner of finance, who shall, on or before the first Monday in May of each year, certify to the mayor the amount of money to be raised by taxation during the ensuing year for municipal purposes. Section 92 requires the mayor, on or before the third Monday in May, to prepare and present to the council his annual budget for the ensuing fiscal year, which shall be prepared in such detail as to the aggregate sum of the items thereof allowed to each department, office board, or commission as the mayor may deem advisable. Section 93 provides that the council shall, on receipt of the budget, consider and adopt the same with or without amendments, and on adopting the said budget shall estimate and declare the amount of money necessary to be raised by tax levy, and section 94 requires the council to forthwith proceed to make by ordinance the proper levy in mills upon each dollar of the assessed valuation of all taxable property within the city, and shall cause the total levy to be certified by the clerk to the proper county officials, who shall extend the same upon the tax lists of the current year in a separate column, itemized "The City of Muskogee," and shall include said city taxes in his general warrant to the proper county official for collection. These provisions of the city charter, in so far as they regulate the method of levying and collecting taxes for purely municipal purposes, prevail over the general laws of the state in reference thereto in so far as said general laws are in conflict therewith, and confer upon the municipal authorities the power and jurisdiction to levy such taxes. City of Collinsville v. Ward, 165 P. 1165.
The minutes of the excise board made at the time failed to show affirmatively that the board ascertained the assessed valuation of the property taxed ad valorem in the respective municipalities, and that it ascertained the probable income of such municipalities from all other sources than ad valorem taxation, and in some instances failed to show that any levy was in fact made. Section 7380, Rev. Laws 1910, requires the board to keep a record of its proceedings, and the absence of such record is said to be fatal to the validity of the taxes the collection of which is sought to be enjoined herein. Estimates in accordance with the law, as appears from the evidence offered and excluded, were submitted by the proper authorities of the various municipalities, and the minutes kept by the board show that many items therein were revised and reduced. To prove that levies were in fact made plaintiff in error offered in evidence the estimates which had been prepared and submitted by the several municipalities, showing therein its estimated yearly income from sources other than ad valorem taxes, and also offered a certificate, indorsed on the estimates submitted by school district No. 20, approving such estimate and ordering a levy based thereon for such school district. Upon the estimates offered there appears, under proper headings, the amount of each item approved by the board, and also the amount to be raised by tax levy. Plaintiff in error offered to show that these figures were made at the time by the clerk under the direction of the board, and that such figures represented the various estimates approved and levy ordered to be made. This evidence was excluded. Section 7380 requires the clerk to certify the levies made by the excise board to the proper municipal authorities and the certificate of the clerk in due form, showing the state equalized valuations of the property taxed ad valorem in each municipal subdivision...
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